Expert “failed to provide objective opinion”, says High Court

Pepe’s Piri Piri: Franchise dispute

An expert witness who said in oral evidence that he saw his role as presenting his side’s case “in the most favourable light” has been criticised by the High Court.

Mathew Gullick, sitting as a deputy High Court judge, said the expert had acted inconsistently with the duties of an expert as set out by the CPR.

In Pepe’s Piri Piri Ltd & Anor v Junaid & Ors [2019] EWHC 2097 (QB), a claim over a grilled chicken food franchise, the court received written and oral expert evidence from two chartered accountants, Simon Blake of Price Bailey for the claimants and Vivian Cohen of Frenkels Forensics for the defendants.

Mr Gullick said he agreed with claimant counsel Nigel Jones QC’s criticisms that Mr Cohen’s report was, in significant part, “more of a critical commentary on the claimants’ conduct of the litigation than an assessment of their claimed losses”.

He continued: “In his oral evidence, Mr Cohen said in response to Mr Jones QC that, although his ultimate duty was to the court, where he was instructed by a particular party then he would do the best that he could to present that party’s case in the most favourable light.

“I do not regard Mr Cohen’s approach, thus explained, as being consistent with the duties of an expert under CPR part 35.

“It is not part of the duty of an expert to advance the case of the party instructing them, whether by advancing arguments of fact or law which are outside their expertise or by seeking to present that party’s case in a favourable light.

“An expert witness should present evidence which is uninfluenced by the pressures of litigation and contains independent assistance by way of objective opinion.”

The judge accepted Mr Jones QC’s submission that Mr Cohen, insofar as he was critical of the claimants’ case and of the evidence of Mr Blake, approached the exercise “more as an advocate than as an expert complying with the requirements of CPR part 35”.

He said it did not mean criticisms made by Mr Cohen were necessarily incorrect, but insofar as there was a conflict between the two experts, “I am constrained for these reasons to place little weight on the views of Mr Cohen”.

The claimants succeeded against six of the defendants but were only awarded damages of £2,500, a tiny fraction of what they had sought.

Last week, we reported on a High Court judge taking to task an “embarrassing” medical expert who made “continual apologies” and used “an expletive” during his evidence.

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